R v Bishop

[2012] NZHC 2761

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-070-001655 [2012] NZHC 2761

THE QUEEN

v

DILLON MICHAEL ROSS BISHOP

Hearing:         18 October 2012

Counsel:         R Ronayne for the Crown

AC Balme for the prisoner

Judgment:      18 October 2012

SENTENCING REMARKS OF ASHER J

Solicitors/Counsel:

Crown Solicitor, DX HP 40041, Tauranga. Email:  [email protected]

AC Balme, PO Box 13079, Tauranga 3141.  Email:  [email protected]

R V BISHOP HC ROT CRI-2012-070-001655 [18 October 2012]

[1]      Dillon Michael Ross Bishop appears for sentence today having pleaded guilty to the manslaughter of David Peter Armstrong.  The particulars of the unlawful acts to which he has pleaded guilty are dangerous driving and/or omission without lawful excuse to observe the duty when in control of a motor vehicle on a road to take reasonable precautions and use reasonable care to avoid danger to human life.

[2]      The maximum penalty for manslaughter is life imprisonment.

[3]      I need to first shortly summarise the relevant facts.  On the day in question,

8 January 2012, Mr Bishop owned a Nissan Skyline motor vehicle.  It had a lowered suspension, a modified engine with a turbo charger and mag wheels.  Mr Bishop had after purchase by him fitted the vehicle with a welded differential.  This causes both drive wheels to turn in unison and prevents them turning independently.  This causes the car tyres, once acceleration is applied, to lose traction more easily and to slide.  It is common practice to modify vehicles in this way when they are to be used specifically for what is known as drifting.  As I understand it there is a form of sport of activity on race tracks in which vehicles modified in this way are used in a racing or competitive context.

[4]      The very thing that the welded differential is designed to do, namely to make the car drift or skid more easily, makes the vehicle unsafe for public roads.  It makes the vehicle particularly unsafe when cornering because it makes the rear wheels push the back of the vehicle out so that it will slide around the corner.  The reason is both wheels travel the same distance around the bend and the lack of any differential stops them making an adjustment. A locked differential means that a vehicle will not get a warrant of fitness for public safety reasons.

[5]      Mr Bishop also did a second modification.  He had added a rear handbraking system that was independent of the original handbrake.  It is common practice to fit this sort of independent rear braking system on drift cars because when applied it accentuates the drift effect of the rear of the car.   It is an improvement on an orthodox handbrake if the goal was to achieve the drift effect.  This new system had a hydraulic brake line that was connected to the rear brakes.   It had two spanners welded together as a handle available to the driver.  This system had been welded to

the transmission hump in the vehicle but the welds were broken.  A vehicle with that system will not get a warrant of fitness for safety reasons.

[6]      The  vehicle  had  also  been  taken  to  a  motor  sport  tuning  business  in December 2011 and had been given a tune, which I understand was a specialist tuning for racing.  At the time of getting that work done Mr Bishop had stated to a concerned mechanic “don’t judge me, it’s a piece of shit, I purely want to use it for burnouts and want to start to use it for drifting”.

[7]      The owner of the company was sufficiently concerned about the state of the vehicle  to  contact  Mr  Bishop  and  advise  him  of  the  faults  with  the  vehicle. Mr Bishop stated that all he really wanted was for the car to be safe to go to the track and “beat on it” and “not blow up”.  It was on this basis that the tuning work was done.  The company noted that the weld holding the independent brake was broken and it was obviously a home-made system.  It was also quite clear that the rear tyres were worn down to the canvas and indeed on the day in question it was noted that a bit of a tyre was hitting the body of the car and making a noise.

[8]      It is also relevant to note that while the car had a current warrant of fitness and registration when acquired by Mr Bishop, the warrant of fitness lapsed in July

2010 and the registration in May 2010.   Neither of these had been subsequently renewed.

[9]      Mr Bishop had also obtained a low volume vehicle certification plate from an associate that related to a written-off car.  He attached that certification plate to his Nissan Skyline so that it would appear that his car had a legitimate certificate for being modified.   So it had a certificate relating to road worthiness that was not correct.

[10]     Mr  Bishop  had  also  applied  to  cancel  the  Skyline’s  registration  plates recording that the vehicle was permanently off the road and had been destroyed or damaged beyond repair.  However, the registration plates were not handed in at the time of cancellation.  Mr Bishop has admitted that on occasions prior to 8 January

2012 he had taken the vehicle on public roads.

[11]     In summary, it is hard to imagine a car that was less roadworthy and more of a danger on the roads.  Not only did it not meet any of the legal requirements for being driven on the roads, but because of its tyres it was profoundly unroadworthy. This was greatly exacerbated by the locked differential.  And what made the car so very dangerous was that it had a very powerful highly tuned motor, turbo charged, and capable clearly of great acceleration and a high top end speed.

[12]     On 8 January 2012 an associate visited Mr Bishop.   Mr Bishop offered to take him for a ride on the public roads. The car proceeded from Tauriko some two or three kilometres through to the Lakes subdivision. At the time of driving the vehicle had no registration plates on it.  The speedometer was not functioning.

[13]     Mr Bishop and his companion drove through two roundabouts, and as they came out of a third roundabout, came up to an open section of road with a 100 kilometres per hour speed limit.  It is adjacent to an undeveloped subdivision and it does not appear to be used greatly by the drivers of vehicles.

[14]     There has been a disputed facts hearing as to the fact sequence that followed as they came out of the roundabout, and I have already given a decision on those disputed facts today.  In summary what I have found is that Mr Bishop who had been driving quietly up to that point, when he came out of the roundabout with a long stretch of open road in front of him, proceeded to accelerate quite hard.  He passed through at least one or two gear shifts and in the course of the acceleration.  As he came out of a gear shift (I did not find Mr Bishop’s associate’s evidence sufficiently clear to have reached a firm decision as to whether the gear change was up or down), the car went into a slide, causing a loss of control of the vehicle.  The right rear of the vehicle slid towards the centre line.   Mr Bishop slowed down and regained control of the vehicle.

[15]     It needs to be said at around this point the associate was aware that there were two cyclists further down the road in the cycle lane.

[16]     Once Mr Bishop had gained control he again and presumably slowed down a little, he again heavily accelerated through the gears.  When he changed into fourth

gear he again lost control with the right rear of the vehicle sliding towards the centre line.  This caused the vehicle to skid along the tarseal road and onto the grass verge. At that stage any chance of controlling the vehicle was lost.  The vehicle slid along the grass for about 100 metres.

[17]     The two cyclists had been David and Debbie Armstrong.  The car as it began to skid back onto the road from the grass narrowly missed Debbie Armstrong, who was behind her husband.  As it re-entered the road the top front right hand corner of the vehicle collided with Mr Armstrong, causing his head to hit the top right corner of the windscreen roof.  He was thrown quite a way through the air and landed on the road.  He was killed instantly.  The distance of his travel through the air has been measured at 31.8 metres.  He slid another 12 metres, coming to rest 44 metres from the point of impact.  His bike was damaged beyond repair.

[18]     The Police summary records that when spoken  to by Police, Mr Bishop admitted being the driver of the vehicle and that the vehicle did not have a warrant of fitness or registration.  He stated that he had been on the road on several occasions to give it a run.  He accepted he had seen the cyclists prior to accelerating and losing control of the vehicle.  He claims to have lost control once and not twice.  However, I have found in the disputed fact hearing that in fact he did lose control twice.

[19]     The effect of Mr Bishop colliding with David Armstrong and causing his death has been catastrophic to his immediate family and friends.   Victim impact statements have been provided by Debbie Armstrong, his wife who was with him when he died; his children Melissa and Jarrod Armstrong; Graham Sun a friend of the deceased; Brian Boswell, Mrs Armstrong’s father; Elaine Armstrong, the mother of the deceased; Dean Waddell, a cousin of the deceased; and Angela Armstrong, the deceased’s sister-in-law.  Mrs Armstrong has read her victim impact statement to the court.  The devastation is palpable.  There is no doubt that David Armstrong was an extraordinarily loved and admired man and a key pivot to three generations of his family - his parents and his wife’s parents in the older group, Debbie Armstrong and other close relatives and friends in their own age group, and then his children.  It is impossible to summarise adequately their grief in any words in a sentencing, but I recognise the impact on them to the full.

[20]     There are no appellate guideline or tariff decisions in relation to manslaughter sentencing.  There are no definitive decisions setting out parameters and approach in relation to manslaughter where the unlawful act concerns the driving of a vehicle.

[21]     I  have  had  extensive  and  careful  submissions  from  counsel  as  to  the parameters for sentencing.  The Crown submits that the level of culpability in this motor manslaughter case is high.  It submits that the appropriate starting point is six years’ imprisonment.   Mr Ronayne for the Crown acknowledges, as he must, that there has to be a discount for good character and for the entry of a guilty plea.  He contests any discount for remorse.

[22]     For Mr Bishop, Mr Balme initially submitted that a starting point in the two and a half to three years was appropriate.  In the light of my findings that there were two losses of control, and that Mr Bishop was deliberating trying to create a measure of slide in his driving, that range had to be increased to three to three and a half years.   He submitted, nevertheless, with the appropriate discounts an end notional imprisonment sentence of less than two years should be reached and that a sentence of home detention was the appropriate sentence.

The starting point

[23]     As Mr Ronayne comments there is no case that he or Mr Balme have been able to present that provides a sentence arising from comparable circumstances.  The unusual range of factors will become more apparent in a moment.  He submits that while culpability is below that which arises in the most serious cases where starting points of up to nine years have been imposed, it is considerably above the other end of the spectrum where there is one isolated act of very bad driving, where starting points in the three year range can sometimes be seen.

[24]     Mr Balme on the other hand equated the culpability here with that which has arisen in some road race cases to which he has referred that can show starting points in the two to three year area.

[25]     It is necessary for me to refer to the aggravating factors.  I do so against the background of the sliding having caused a death and the irremediable damage to quite a number of victims, and I take into account, as I am obliged to do, the great effect on them.

[26]     I  consider  the  following  to  be  aggravating  factors.    First,  there  is  the deliberate and gross modification of a motor vehicle that made it highly dangerous to drive on any public road, when Mr Bishop was clearly prepared to drive the vehicle on public roads.  The mere act of grossly modifying a vehicle is not in itself culpable if it is never to be used on a public road in an environment where no one can get hurt, but when the modifier knows there is a prospect of the car being on a public road there is real culpability. As I have said, this car was about as dangerous as a car could be on any public road.  Under any form of acceleration, it was a lethal weapon.

[27]     The next factor, which I accept has some overlap with the first, was that the car was unregistered and had no warrant.   It featured a certification as to modifications that in essence contained a false representation as it was not for that car.   The fact that Mr Bishop had retained registration plates since they had been cancelled was essentially misleading.   So too was the fact that he had misled the concerned owner of the company that had tuned the vehicle.   These all add to a degree to the seriousness of the offending.  Mr Bishop had deliberately said or done deceitful things in relation to this car.

[28]     The third factor I refer to, and I again acknowledge a degree of overlap in terms of culpability with the earlier factors, is his decision to drive this car on the day in question on a public road.  Taking this car out on any public road, even for the shortest distance, was a reckless act.   It defied all the procedures and rules and requirements that have been developed over the years to ensure that cars that are on the road are safe.

[29]     The next culpable factor to which I refer is the engagement in a manoeuvre designed to cause a loss of traction.  I refer here to the first skid.  I then look at that in the context of there being a deliberate decision once the car had been brought under control to cause a second loss of traction by hard acceleration.

[30]     Again  acknowledging  a  degree  of  overlap,  there  was,  as  Mr  Ronayne submitted and Mr Balme clearly accepted to a degree, some exhibitionism being shown here. There was a display of what the car could do.

[31]     The next aggravating factor I refer to is the fact of acceleration to a speed well above the speed limit.   The associate who has given evidence estimated the speed at 110 to 120 kilometres per hour, but that was entirely a guess.   The speedometer was not working.  The Crown has obtained expert reports that indicate that, at the point at which control was lost, the vehicle was travelling at 127 kilometres per hour.  This is the view of the Police expert crash analyst.  Mr Balme has obtained reports indicating possible speed ranges, one speed range being 128 to

134 kilometres per hour, and another range being 118 to 129 kilometres per hour.

[32]     The final aggravating factor I refer to is that certainly the second skid was engendered  at  this  relatively  high  speed  in  this  very  dangerous  machine  after Mr Bishop had seen David and Debbie Armstrong on their bikes.   They were, of course, supremely vulnerable.  That in itself is an aggravating factor, but the other aspect is that the decision was made to take the risk of a skid at high speed as the car approached them.   A moment’s rational thought would have revealed that, should control not be regained, there was a real risk of the car hitting them.  Despite this Mr Bishop deliberately engendered the second skid.

[33]     So this dangerous driving is a lot more serious than just the sheer act of driving at a high speed, or taking the corner too fast.   I do accept Mr Ronayne’s submission that there is an element of premeditation.  Not premeditation of course in the sense of wanting to cause an accident, but the period of wrongdoing was far more than just the 30 seconds of the loss of control.  The wrongdoing was having this car and using it on occasions on the road over weeks, if not months.

[34]     The extraordinary risk was taken every time the vehicle was taken out, and that risk was deliberately greatly accentuated with the decision to drive it at speed and then cause skids, and then again accentuated further in doing this in the face of cyclists nearby.  So I do not accept Mr Balme’s submission that I should equate the culpability in terms of the starting point reached in some of the road race cases.  I

accept of course that it is not as serious as some of the terrible stories of dangerous driving where passengers have been pleading for the driver to slow down and the recklessness has been at an extraordinary level over a long period of time.  I think in particular  of  the  case  of  R  v  Tairi[1]   in  this  regard.    I  do  note  the  decision  of R v Matagi[2]  where a starting point of five years was fixed in relation to deliberate bad driving on a busy arterial road with an element of racing and grossly excessive

[1] R v Tairi HC Hamilton T033323, 20 April 2004.

[2] R v Matagi HC Christchurch CRI-2008-009-12096, 1 October 2009.

speed, killing the passenger in another car and injuring the driver. [35]         I fix a starting point of five years’ imprisonment.

Personal factors

[36]     I now turn to matters relating to Mr Bishop personally.   The pre-sentence report is careful and essentially very positive about Mr Bishop.  He has obviously had a difficult upbringing and despite these difficulties completed his schooling and has good employment as part of a logging gang.  He is very close to his aunt who cannot speak highly enough of him.  She and a considerable number of people who know him well have provided statements to me directly.  As the pre-sentence report notes he comes over as a caring, responsible, respectful and clean living young man. He is a great support and comfort to her in a battle that she is having with cancer.

[37]     His employer speaks very favourably of him.   He has been able to spend money on the Nissan Skyline and as well owns a utility valued at $8,000.   He appears in all respects to be a clean living and sound person.  There is no doubt that he feels very strongly the weight of what he did.  I have no doubt that he feels great emotional distress about it and this has been reported from a number of independent sources.  He has offered to enter into a restorative justice meeting.

[38]     Mr Balme has also emphasised the fact that he was 21 when the incident occurred and suggested that he had still not reached full maturity, and that this

should be a factor that I take into account.

[39]     Mr Ronayne accepts that some discount must be appropriate in this area, although he suggests that Mr Bishop’s driving record is not perfect.

[40]     Taking all these factors into account I discount from the starting point of 60 months, nine months off the sentence which is 15 per cent, reducing the sentence to

51 months’ imprisonment, or four years and three months.  I have taken into account his age at the time of the accident in reaching this discount.

[41]     I now turn to the issue of remorse.  Mr Balme strongly submits that I should apply a discount for remorse.  I accept that Mr Bishop sincerely grieves for the death he has  caused.    However,  I am  not  satisfied  that  he has  properly accepted  his responsibility for this accident.  As the probation officer perceptively noted, he has continued to maintain that he did not deliberately do anything that led to the consequent death of the cyclist.   I have heard him give  evidence.   He has not accepted his responsibility for this accident as he should have.  To be entitled to a discount for remorse he should have accepted the full weight of his recklessness in taking this vehicle on a road, the full weight of his recklessness in accelerating to a very considerable speed, and the full weight of his utter irresponsibility in trying to engender skids on a public road and in the face of cyclists ahead.  He has just not done this.  So while his grief is, in my view, sincere, I will not give him a discount for remorse.

[42]     I turn now to the discount for the guilty plea he has entered.  I am mindful that Hessell v R[3]  indicates that a discount of up to 25 per cent is appropriate for a guilty plea.  While I am fully prepared to give a discount for a guilty plea, I am not prepared to go to that percentage.  There are three factors that persuade me of this. First, Mr Bishop’s guilty plea has in a sense been conditional, or qualified, by his refusal to accept responsibility for his deliberate acts of skidding twice and doing so deliberately.   There has had to be a disputed fact hearing in which he was unsuccessful.  Fortunately the victims did not have to give evidence, but nevertheless

[3] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

they had to go through the anguish of sitting through it.

[43]     The second factor is that while the guilty plea was entered on arraignment it was not at the first possible opportunity and the entry of that guilty plea awaited the preparation of reports obtained by the defence in relation to the Police assessment of the causes of the accident.  So some eight months went by before a guilty plea was entered.

[44]     The third factor I take into account is that the case against Mr Bishop was a strong one.  The modifications to the vehicle were there for all to see and there was a witness attesting to how he had driven.

[45]     Taking all these factors into account I consider a discount for the guilty plea at something less than 20 per cent but more than 15 per cent to be appropriate.  The end discount will be around the 17 to 18 per cent mark, involving a reduction of a further nine months from the sentence leaving an end sentence of 42 months, or three years and six months’ imprisonment.

[46]     I also consider it appropriate to make a reparation order and to impose a period of disqualification.

Summary

[47]     Mr Bishop, on the charge of manslaughter you are sentenced to a period of imprisonment of three years and six months.  You are ordered to pay reparation of

$5,000 to the victim’s family.  In case I need to direct specifically to whom, that is to be paid to Debbie Armstrong. You are disqualified from driving for three years. The vehicle is forfeit to the Crown.

[48]     You may stand down.

……………………………..

Asher J